Tuesday, April 13, 2010

Adoption when there is differnece of Opinion

Where there must be unanimity in opinion and where difference is allowed

The Ummah is one Jama'ah in its root. Islam has made clear where differences do not arise and where they can arise.

وَاعْتَصِمُواْ بِحَبْلِ اللّهِ جَمِيعاً وَلاَ تَفَرَّقُوا
"And hold tight to the rope of Allah and divide not," [TMQ Ale-Imran: 103]

Allah (Subhanahu wa ta'aala) orders the Muslims to hold tight and not let go of the rope of Allah (Subhanahu wa ta'aala) and not to divide.

Ibn Masood (ra), Ali bin Abi Talib (ra), and Abu Saeed Al-Kuddrri (ra) said it is the Qur'an. Others said it is the Deen of Allah (Subhanahu wa ta'aala). Others like Ibnul Mubaarak said it is the Jama'ah.

At-Tabari said; "...and do not disperse away from the Deen of Allah and His covenant which he took from you in His Book: that you should be together in obeying Him and His Messenger (SalAllahu alaihi wasallam)."

Ibn Katheer said; "He ordered them to stay in the Jama`ah and not to divide."

Al-Qurtubi said; "Do not divide as the Jews and the Christians in their Deen...and it could mean do not separate based on your desires and interests."
Therefore, the disagreement that Muslims are not allowed to have is in the fundamentals of their Deen, not in its branches.

Imam Ahmad recorded that Abu `Amir `Abdullah bin Luhay said; "We performed Hajj with Mu`awiyah bin Abi Sufyan. When we arrived at Makkah, he stood up after praying Dhuhr and said; ‘The Messenger of Allah (SalAllahu alaihi wasallam) said;

إِنَّ أَهْلَ الْكِتَابَيْنِ افْتَرَقُوا فِي دِينِهِمْ عَلى ثِنْتَيْنِ وَسَبْعِينَ مِلَّةً، وَإِنَّ هذِهِ الْأُمَّةَ سَتَفْتَرِقُ عَلى ثَلَاثٍ وَسَبْعِينَ مِلَّةً يَعْنِي الْأَهْوَاءَ كُلُّهَا فِي النَّارِ إِلَّا وَاحِدَةً وَهِيَ الْجَمَاعَةُ وَإِنَّهُ سَيَخْرُجُ فِي أُمَّتِي أَقْوَامٌ تَجَارَى بِهِمْ تِلْكَ الْأَهْوَاءُ كَمَا يَتَجَارَى الْكَلَبُ بِصَاحِبِه، لَا يَبْقَى مِنْهُ عِرْقٌ وَلَا مَفْصِلٌ إِلَّا دَخَلَه

‘The People of the Two Scriptures divided into seventy-two sects. This Ummah will divide into seventy-three sects, all in the Fire except one, that is, the Jama`ah. Some of my Ummah will be guided by desire, like one who is infected by rabies; no vein or joint will be saved from these desires.''"

This hadith was also narrated by Abu Dawood (2/503), Ahmad (4/102) and al-Haakim (1/128) among others, with similar wording but with the following addition;

ثنتان وسبعون في النار. قيل: يا رسول الله
من هم؟ قال: الجماعة
"Seventy two in hell fire and one in the Jannah: that is the 'Jama`ah."

Some scholars, such as ash-Shawkani and al-Kawthari mistakenly said that this addition is weak. Ibn Hazm wrongly said that it was fabricated.

So the subject that the hadith discusses is not the differences, which arise from interpretation of the texts, which are preponderant in meaning, but it is condemning those firqah (sects) that have differed in the foundations of the Deen.

Rather, those sects that are mentioned in the hadith are those who have left the fold of Islam such as the Qadiani, who claimed Prophethood after Muhammad (SalAllahu alaihi wasallam), or those Alawi, who claim Ali (ra) to be god incarnate (may Allah protect us from such deviation), or those who deny the punishment in the Ahkirah, etc.

Why differences exist

Difference in opinion exists because the Shari'ah rule, which represents the address of the Legislator related to the actions of the servants, have come in the Qur'an and the Hadith, and many of these carry several meanings according to the Arabic language and according to Shari'ah. Hence, it is natural and inevitable for people to differ in their understanding and for this difference in understanding to reach the level of disparity and contradiction in the intended meaning. Thus, it is inevitable for different and contradictory understandings to be reached. These could be a host of different and contradictory understandings in the one matter.

Bukhari extracted on the authority of Nafi', on that of Ibnu Omar ® who said: "the Messenger of Allah (saw) said on the day of Al-Ahzab (the battle of the Ditch): "None of you should pray Asr except in Bani Quraytha." The time of Asr entered while some were still on the way; so some said: "We should not pray until we reach Bani Quraytha." Others said: "No, we should pray because the instruction does not mean this." This was mentioned to the Messenger of Allah (saw) and he did not rebuke any of them." When the Messenger of Allah (saw) said: "None of you should pray Asr except in Bani Quraytha.", some understood that he was urging haste and they prayed in the way, while others understood that he (saw) had literally ordered them to pray Asr in Bani Quraytha, thus they delayed Asr until they reached their destination. When the Messenger of Allah (saw) heard of this, he approved of both camps' actions.

There are many verses and Ahadith similar to this. The difference of opinion in the one matter makes it incumbent upon the Muslims to adopt one opinion from among these various opinions, for all of them are Shari'ah rules, and the rule of Allah (swt) in the one single matter does not multiply. Therefore, it is imperative to determine one single rule and adopt it. hence, the Muslim's adoption of one specific Shari'ah rule is necessary and inevitable when he undertakes the action, for the undertaking of the action obligates the Muslim to accomplish it according to the Shari'ah rule, whether this were a Fardh (obligatory), or Mandub (recommended), or Haram (forbidden), or Makruh (despised), or Mubah (permitted), and this makes it incumbent upon the Muslims to adopt a specific Shari'ah rule when taking the rules to act upon them, whether he were a Mujtahid or a Muqallid or otherwise.

Where adoption is a must to settle the difference of opinion

The Khalifah adopts a host of specific Shari'ah rules, which he will enact as a constitution and as laws. If he adopts a Shari'ah rule, this rule alone becomes the Shari'ah rule that must be acted upon and it becomes a binding law that every citizen must obey openly and privately.

The evidence of this article is derived from the Ijma'a (General Consensus) of the Sahaba. The Ijma'a of the Sahaba has been established in stipulating that the Khalifah reserves the right to adopt specific Shari'ah rules. It has also been established that it is obligatory to act upon the rules adopted by the Khalifah. A Muslim is forbidden from acting upon other than what the Khalifah has adopted in terms of Shari'ah rules even if these rules were Shari'ah rules adopted by a Mujtahid. This is so because the rule of Allah that becomes duly binding upon all the Muslims is that which the Khalifah adopts. The rightly guided Khulafa' proceeded in this manner. They adopted a host of specific rules and ordered their implementation; thus, the Muslims, with the Sahaba amongst them, used to act upon these rules and abandon their own Ijtihad. For instance, Abu Bakr ® adopted in the matter of divorce a rule stipulating that the triple divorce would be considered as one divorce if it were pronounced in one go. He also adopted in the matter of distributing the wealth upon the Muslims a rule stipulating that wealth should be distributed equally amongst the Muslims, regardless of seniority in Islam or anything else. The Muslims followed him in this while the judges and the Walis implemented the rules which he had adopted.
Examples of Ijma as-Sohaba (RA)

When Omar ® took office, he adopted in the same two matters different opinions to those of Abu Bakr's; thus he imposed the rule stipulating that the triple divorce in one sitting is considered as three. He also distributed the wealth among the Muslims according to their seniority in Islam and according to their needs, rather than equally. The Muslims duly followed him in this while the judges and the Walis implemented the rules he had adopted. Then Omar ® adopted a rule stipulating that the land conquered in war is a spoil for Bayt-al-Maal, (the State's treasury) not for the fighters, and that the land should remain with its owners and should not be divided among the fighters nor among the Muslims. The Walis and the judges duly complied and implemented the rule which the Khalifah had adopted.

Therefore, the rightly guided Khulafa' proceeded in this way, adopting and ordering people to abandon their Ijtihad and the rules which they had acted upon and adhere to that the which the Khalifah had adopted. The Ijma'a of the Sahaba was established on two matters; these are the adoption and the obligation of acting upon that which the Khalifah adopts. Based on this Ijma'a of the Sahaba, the celebrated Shari'ah principles were obtained.

These are:

 1- The Sultan reserves the right to effect as many judgements as the problems which arise.
 2- The order of the Imam settles disagreement.
 3- The order of the Imam is binding.

In essence, the adoption is necessary when a difference of opinion in the one matter occurs. Hence, in order to act upon the Shari'ah rule in this matter, it is imperative to adopt a specific rule in this matter.

Practicalities of adoption

As for the Khalifah, it is imperative for him to adopt a host of specific rules according to which he assumes managing people's affairs. Hence, it is necessary for him to adopt certain rules pertaining what is of general nature to all the Muslims, in terms of government and authority matters, such as Zakat, levies, Kharaj (land tax) and foreign relations, and also, in terms of all that is related to the unity of the State and the rule.

However, his adoption of the rules is subject to scrutiny. If the Khalifah could not undertake an action, whose undertaking necessitates managing people's affairs according to the Islamic Shari'ah rules, unless he adopted a specific rule in that matter, in this case the adoption would be obligatory upon the Khalifah.

This would be in concordance with the Shari'ah principle stipulating that: "Whatever is necessary to accomplish a duty is in itself a duty.", such the signing of treaties for instance. However, if the Khalifah could manage people's affairs in a specific matter according to the Islamic Shari'ah rules without having to resort to the adoption of a specific rule in this matter, in this case the adoption would be permitted for him rather than an obligation, such as "Nisab Al-Shahada" (the minimum number of witnesses in a testimony) for instance. In this case, it is permitted for him to adopt or not to adopt, for in essence, the adoption is permitted and not obligatory; this is so because the Sahaba ® have unanimously consented that the Imam can adopt and they have not consented that the Imam must adopt. Therefore, the adoption itself is Mubah, and it does not become obligatory unless the obligatory management of people's affairs cannot be accomplished except through adoption; then it becomes obligatory so that the duty could be accomplished.

The Khalifah does not adopt any specific Shari'ah rule in matters related to rituals except in Zakat and Jihad, nor does he adopt any thought from among the thoughts related to the Islamic Aqeedah.

Evidence of this article is derived from the fact that the adoption is in itself Mubah for the Khalifah and not obligatory upon him. Just as he is entitled to adopt certain rules, he is also entitled to refrain from adopting certain rules. It is not matter which he imposes upon people, because it is not them who adopt, it is rather a matter that concerns him only; thus he is entitled to either adopt or to abstain from adopting. He is entitled to act according to what he deems fit. It emerged from the events of Al-Ma'mun, pertaining the Fitna (strife) of the creation of the Qur'an, that adoption in the thoughts related to Aqeedah matters has caused problems to the Khalifah and Fitna amongst the Muslims. It also emerged from the Fatimide's adoption of Imam Ja'afar's school of thought that this caused discontent amongst the followers of other schools of thought and a resentment towards this type of adoption, especially in the opinions related to Aqeedah matters and the opinions related to rituals. Therefore, the Khalifah deems it fit to abstain from adopting in matters related to Aqeedah and in rules related to rituals in order to avoid problems and in order to observe the consent and the tranquillity of the Muslims. Hence, the Khalifah chooses not to adopt in these two matters and Shari'ah has not made it an obligation upon him to adopt; thus he may choose not to adopt. Abstaining from adopting in matters of Aqeedah and in rituals does not mean that it is forbidden for the Khalifah to adopt in them, it rather means that the Khalifah chooses not adopt, for he can either adopt or abstain from adopting. Thus he may choose not to adopt. That is why the article stated that the Khalifah does not adopt rather than stating that the Khalifah is forbidden from adopting, which indicates that he may choose not to adopt.

As for choosing to abstain from adopting in Aqeedah matters and in rituals, this is based upon two issues: The hardship caused by coercing people to follow a specific opinion related to Aqeedah matters and the fact that what prompts the Khalifah to adopt is in fact the management of the Muslims' affairs by one single opinion and the preserving of the unity of the State and the unity of the rule. Hence, he adopts in matters related to relationships between individuals and related to public matters and he does not adopt in matters related to relationship of man with his God.

Adoption by the Hizb

The Shar'a does not require the mere presence of a group. Rathe hat the Shar'a requires is the establishment of a group whose purpose is to establish this order. The evidences for the existence of the group clarify this for us.

In His SWT saying; "And let there arise out of you a group inviting to all that is good (Islam), enjoining the ma'roof (good) and forbidding the munkar (evil). And it is they who are successful." [TMQ 3:104]. The Shar'a has obliged the establishment of a political group whose ideology is Islam and that carries the thoughts and Shar'ee rules necessary for the achievement of the aims the group was established for, which are the dominance, establishment and accession to power [of Islam]. The order is not to have a group for its own sake. It is rather to realise what was commanded, which is the da'wah and enjoining the ma'roof and forbidding the munkar. Also, it is not the da'wah and enjoining the good and forbidding the evil for their own sake. Rather the order is to realise the objective for which the da'wah and enjoining the ma'roof and forbidding the munkar exist; dominance, consolidation and accession to power.

The Messenger SAW said; "It is not allowed for three people to be on any part of the earth without appointing one of them as ameer (leader)." [Narrated by Ahmad b. Hanbal]. The Shar'a indicated that for any joint action that the Muslims have been ordered to perform they must have an ameer. The obedience to him will be obligatory in the matter he has been made ameer for, and for the people over whom he has been made ameer. The group must comply with the order of the ameer, so that the results of this collective work are achieved according to the Shar'a. - Since Allah SWT has enjoined upon the Muslims many obligations that are entrusted to the Khaleefah only, then it has become imperative to appoint a Khaleefah in order to realise these obligations. Since the appointment of a Khaleefah and the establishment of the Khilafah cannot be achieved except by a group, then the presence of a group whose aim is to establish the Khaleefah and the Khilafah becomes inevitable. This is based on the principle: ‘That which is necessary to establish a wajib is itself a waajib.'

So it becomes clear that the presence of a group is inextricably linked to the presence of the required Shar'ee objective. Thus, it is not a group that merely undertakes the da'wah to Islam. It is not a group that conveys the message just for the sake of conveying. Rather it is a group established for the purpose of establishing Islam in the life of the Muslims, through the establishment of the Islamic State, which is considered the Shar'ee method of applying all the rules of Islam, both individual and collective. Hence a group must exist whose purpose is to realise the aim for which it has been established.

Until the group can be considered to have fulfilled all that is required of it, it must do the following things.

It must adopt all the thoughts, Shar'ee rules and opinions that are necessary for its work, and it should adhere to them in word, deed and thought. This is because the aim of adoption is to protect the unity of the party. If the group is established and its members have different thoughts and diverse Ijtihaadaat the group will be afflicted with splits and fragmentation, even though they may be united on the aim and on Islam as well. It is allowed for the Ameer to change the means and styles according to the requirements of the work.

Since the group will be dealing with a wide expanse of land and its reach will extend to many States, then the sheer size and volume of the work necessitates the presence of an administrative system through which the party can pursue the da'wah and realize its aims in all spheres of its work. The administration system will organize and regulate the movement of the da'wah. It will follow the culturing of the shabab and prepare the general atmosphere for the idea. It will organize the intellectual and political struggle. The party will appear to the Ummah as a body, which committed itself to realise this task. Hence, there must be an organisational structure, which is devoted to realising the aim as best as possible, so it monitors the achievements of the work and maintains them.

So the party must adopt an administrative system or an organizational structure that will enable it to organise the da'wah successfully, thus leading to the attainment of the aim. The party must adopt an administrative law through which the body and its movement is organised, where the rules regarding the powers of the Ameer, how he runs the party and how he is selected are defined. It explains who will appoint those responsible for the areas and provinces, and what the limits of their powers are. It is the law that will organise the administration concerning every action of the Hizb and specify the mandatory powers of everyone concerned. All of these rules will take the Hukm of the means and styles that are required for executing the Sharee'ah rules related to the work. It is obligatory to adhere to the adopted administrative styles as long as the Ameer considers them necessary, because obedience to the Ameer is waajib.

26 Rabi' II 1431

1 comment:

Anonymous said...

Can you please give me references/evidences where its written that Umar r.a. follow triple divorce in one sitting as 3 divorces while abu bakar r.a. implemented his opinion in his khilafah